Seabock, In re

• Decision Date: 18 February 1983
• Parties: In re Robert SEABOCK, on Habeas Corpus. A011507. 1 Crim. 23094.
• Court: California Court of Appeals Court of Appeals

Page 310

189 Cal.Rptr. 310

140 Cal.App.3d 29

In re Robert SEABOCK, on Habeas Corpus.

A011507.

1 Crim. 23094.

Court of Appeal, First District, Division 4, California.

Feb. 18, 1983.

Hearing Denied April 20, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Div., William D. Stein, Asst. Atty. Gen., Linda Ludlow, Ronald A. Bass, Deputy Attys. Gen., San Francisco, for appellant.

Thomas J. Nolan, Nolan, Constantinides & Parnes, Palo Alto, for respondent.

POCHE, Associate Justice.

The People appeal from an order of the Marin County Superior Court in a habeas corpus proceeding ¹ which directs the Board of Prison Terms (Board) to "set aside its determination that [Robert Seabock] is unsuitable for parole, determine that [he] is suitable for parole, and then proceed to fix [his] parole release date in accordance with the appropriate guidelines."

We reverse.

Facts

In 1974, Seabock was sentenced to life in state prison upon conviction of first degree murder and other offenses. (§§ 187, 189) ² His minimum eligible parole date was computed to be December 13, 1979.

In December of 1979, Seabock was found unsuitable for parole by a three-member panel of the Board.

Following an unsuccessful administrative appeal, Seabock initiated habeas corpus proceedings in Marin County Superior Court. He alleged that the application of the Determinate Sentencing Law (DSL) Guidelines to a prisoner who had been sentenced under the Indeterminate Sentencing Law (ISL) constituted a denial of equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) and a violation of the ex post facto clause (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.)

The trial court concluded that application of the DSL parole standards to Seabock violated the ex post facto clause. ³

Discussion

Both the United States Constitution (art. I, § 9, cl. 3; art. I, § 10, cl. 1) and the California Constitution (art. I, § 9) prohibit the enactment of an ex post facto law.

Recently the United States Supreme Court explained the workings of the clause: "two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, [fn. omitted] and it must disadvantage the offender affected by it. [Fn. omitted; citations.]" (Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17.) A law need not impair a vested right to violate the ex post facto prohibition: "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. [Fn. omitted.]" (Weaver v. Graham, supra, 450 U.S. at pp. 30-31, 101 S.Ct. at p. 965.) ⁴

Seabock contends, and the trial court agreed, that the application of the Determinate Sentencing Law (DSL) guidelines for determining parole suitability to one who had committed a crime and had been convicted during the time that the Indeterminate Sentence Law (ISL) was in effect is a violation of the ex post facto clause.

There can be no doubt that application of a law (the DSL) enacted more than five years after the offenses for which Seabock was imprisoned is--as to that prisoner--a retrospective application of that law within the meaning of Weaver v. Graham.

The more difficult question--the second prong of Weaver v. Graham--is whether this admittedly retrospective application "disadvantaged" Seabock. It is not enough to prove that a law is applied retrospectively. It must also be demonstrated that it has the potential of hurting more than the law it replaced. The question before us is did the law applied to Seabock to deny him parole (DSL) "disadvantage" him any more than if the ISL had been used to determine his suitability for parole?

Since disadvantage in the ex post facto context is a comparative concept, an historical examination must first be made of the standards for determining parole eligibility which existed at the time Seabock committed his offenses: October 6, 1972.

An accurate picture of how and under what standards the Adult Authority, the entity then empowered to determine suitability for parole, exercised that authority is found in the law reviews and in the cases. One writer describes the situation starkly: "The Legislature has given no guidance to the Adult Authority in the way of criteria for decision making; the courts have likewise largely abstained from establishing criteria or ruling on the validity of factors considered by Adult Authority panels except to say that the agency must, 'discharge its responsibilities in good faith, neither arbitrarily nor capriciously....' Neither has the Adult Authority developed a formal set of criteria for the fixing of sentences or the granting or denial of parole. Chairman Kerr presented a list of 'factors most often considered' as to the parole decision in testimony before a subcommittee of the House Committee on the Judiciary on October 25, 1971:

"1. Details of current commitment offense.

"2. Extent and nature of criminal history and/or behavior pattern.

"3. Probation officer's presentence report and subject's attitude toward offense.

"4. Views of trial judge and district attorney.

"5. Views of defense counsel and any interested parties.

"6. Social and psychological history.

"7. Time served on current commitment offense.

"8. Response to institutional program in terms of participation and accomplishments.

"9. Present attitude toward offense and future.

"10. Insight into personal and family problems.

"11. Psychiatric evaluations (including prognosis) when required by law or Board order.

"12. Nature and degree of threat to public safety.

"13. Plans and preparation for release on parole, including job offers, reasonable employment opportunities, family support, and living arrangements.

"He defended the failure of the Adult Authority to adopt and promulgate more detailed, formal criteria, asserting that new factors are added based upon ongoing research and that factors considered necessarily vary with each case.

"A Report of the Assembly Committee on Criminal Procedure, highly critical of the lack of standards guiding the parole decision process, asserted that the time spent in prison, 'seems to depend on three factors:

"1. The values and feelings of individual parole board members.

"2. The mood of the public.

"3. Institution population pressures.'

"Absence of formal criteria together with lack of written reasons for decisions and the unilateral nature of most decisions result in a completely discretionary and therefore possibly arbitrary decision process." (Comment, The California Adult Authority--Administrative Sentencing and the Parole Decision as a Problem in Administrative Discretion, 5 U.C. Davis L.Rev. 360, 373-375 [fns. omitted].)

The comment writer then concludes with plain language terseness not characteristic of law review prose: "The Adult Authority exercises tremendous power in fixing sentences and deciding on paroles. It presently does so with almost unlimited discretion. Its case load is heavy and the hearings brief. In practice, the decision on which the liberty of the prisoner turns is made unilaterally by one man who is not guided by formal criteria and who is not legally required to justify his decision." (Id., at pp. 381-382.)

That absence of formal criteria is more politely described in the cases. For example, the California Supreme Court painted the picture this way: "In this state the parole power is vested in the Adult Authority. [Citation.] While a prisoner eligible for parole has the right to apply therefor and to have his application duly considered, he has no right to a parole at any fixed time, or at all; the decision to grant or deny parole is committed entirely to the judgment and discretion of the Adult Authority. [Citations.] 'In determining whether the privilege of parole shall be granted a prisoner, that authority is not guided solely by the good conduct of the prisoner while incarcerated. The nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation and the interests of public security are all taken into consideration.' [Citation.]" (In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200, emphasis added; see also In re Minnis (1972) 7 Cal.3d 639, 644-645, and fn. 6, 102 Cal.Rptr. 749, 498 P.2d 997.) This court described the reality under the ISL this way: "The exercise of this discretion involves the deliberate assessment of a wide array of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public." (In re Fain (1976) 65 Cal.App.3d 376, 389, 135 Cal.Rptr. 543.)

Thus, at the time Seabock committed his crimes the Adult Authority was vested by law with a broad discretion to grant or deny parole and in exercising that discretion the Adult Authority considered the gravity of the offense. ⁵

The fulcrum of Seabock's ex post facto claim rests on his understanding of decisional law which he reads as establishing that under the ISL a prisoner could not be found unsuitable for parole solely on the basis of his commitment offense. He misunderstands those decisions: In re Stanley (1976) 54 Cal.App.3d 1030, 126 Cal.Rptr. 524; In re Minnis, supra, 7 Cal.3d 639, 102 Cal.Rptr. 749, 498 P.2d 997; and People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.

In re Stanley held invalid a directive by the chairman of the Adult Authority prescribing a base offense for each parole...